# Chief Account Officer & Anr v. Mohd. Idrish

- **Citation:** (2014) 2 ILRA 907
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-06
- **Case number:** Civil Misc. Writ Petition No. 66820 of 2010
- **Bench:** Rajes Kumar, Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chief-account-officer-anr-v-mohd-idrish-43028
- **Pages:** 3

## Headnote

Constitution of India, Art.-226-Service
law-recovery of excess amount-after six
year retirement-when received excess
amount knowingly not disclosed this
fact-contention that not instrumental in
getting excess amount can not be
recovered-held-Public
money
neither
belongs to payer or receiver-it can be
recovered at any time-direction to pay
entire amount within 3 month with three
installments-without
any
excess
demand-petition allowed.

Held: Para-6
So far as the payment in excess is
concerned, we are of the opinion that it
is not in dispute. The amount which has
been paid in excess was not legally due
to the respondent, it was a public money
and cannot be retained illegally.

Case Law discussed:
2012(4) ESC 509 (SC).

## Text

2 All]. Chief Account Officer & Anr. Vs. Mohd. Idrish
907
concerned parties and pass appropriate
order expeditiously preferably within a
period of three months from the date of
communication of this order. Till the
decision is taken by the Regional Level
Committee, the status quo as on today
shall be maintained by the parties.

19. Needless to say that the Regional
Level Committee shall consider the
matter independently in accordance with
law. Any observation made in this
judgement shall not cause any prejudice
to the contentions and interest of either of
the parties.

20. Accordingly, the writ petition is
disposed of.

21. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2014

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No. 66820 of 2010
along with W.P. No. 68908 of 2010

Chief Account Officer & Anr. ...Petitioners
Versus
Mohd. Idrish ...Respondent

Counsel for the Petitioners:
Sri Subodh Kumar, Sri Udit Chandra

Counsel for the Respondent:
S.C., Sri A.K. Srivastava, Sri S. Srivastava

Constitution of India, Art.-226-Service
law-recovery of excess amount-after six
year retirement-when received excess
amount knowingly not disclosed this
fact-contention that not instrumental in
getting excess amount can not be
recovered-held-Public
money
neither
belongs to payer or receiver-it can be
recovered at any time-direction to pay
entire amount within 3 month with three
installments-without
any
excess
demand-petition allowed.

Held: Para-6
So far as the payment in excess is
concerned, we are of the opinion that it
is not in dispute. The amount which has
been paid in excess was not legally due
to the respondent, it was a public money
and cannot be retained illegally.

Case Law discussed:
2012(4) ESC 509 (SC).

(Delivered by Hon'ble Rajes Kumar, J.)

1. The Writ Petition No.66820 of
2010 has been filed by the Chief Account
Officer
(GPF),
Controller
of
Communication Accounts and Union of
India, and the Writ Petition No.68908 of
2010 has been filed by the Chief General
Manager U.P. East Telecom Circle,
Telecom
District Manager,
B.S.N.L.
Jaunpur and Accounts Officer (Cash), O/o
T.D.M. B.S.N.L. Jaunpur.

2. In both the writ petitions the
petitioners are challenging the order of the
Central
Administrative
Tribunal,
Allahabad
Bench,
Allahabad
dated
11.08.2010
in
Original
Application
No.1392 of 2009.

3. The brief facts of the case are that
the respondent was the employee in the
Department of Telecommunication since
21.03.1969 and retired on 29.5.2003.
After six years from the date of retirement
a recovery notice dated 17.08.2009 has
been issued by the petitioners asking the
respondent
to
pay
the
sum
of
Rs.1,12,525/-. According to the notice,
the respondent has been paid the amount
908 INDIAN LAW REPORTS ALLAHABAD SERIES
in excess in the financial year 1996-97.
The respondent filed his reply vide letter
dated 15.09.2009 contesting the notice on
the ground that the recovery after the
retirement of six years is illegally,
arbitrarily and without jurisdiction. When
no response has been received from the
petitioners, the respondent filed a Writ
Petition No.53004 of 2009, which has
been
dismissed
on the
ground
of
alternative remedy. In pursuance thereof
the respondent filed Original Application
No.1392 of 2009 before the Tribunal. The
Tribunal vide order dated 11.08.2010
allowed the Original Application. The
Tribunal held as follows:-

"I have heard both the counsel and
perused the record on file. It is clear that
the mistake in the opening balance was
made by the employer and was not due to
any concealment of fact or fraud
committed by the employer. It is also
normal practice for financial statements
to be accepted as correct. The applicant
retired and mistake was not detected at
that time hence all retiral benefits were
given to him. It is only after a lapse of 6
years that mistake was detected and now
he is being asked to make good the
payment made to him. I am of the opinion
that mistake in the opening balance was
made by the office staff dealing with the
matter and there was no concealment or
fraud committed by the applicant in the
matter. Therefore, placing reliance on
two judgments of Hon'ble High Court
(referred to above), no case seems to be
made out for recovery from the applicant
at this stage."

4.

Learned
counsel
for
the
petitioners submitted that it is not
disputed that sum of Rs.1,12,525/- has
been paid in excess to the respondent and
the said payment was due to one Sri
Mohd. Illyas, but instead of crediting the
said amount in the account of Sri Mohd.
Illyas it has been inadvertently credited to
the account of the respondent in the
financial
year
1996-97.
When
the
respondent was not entitled for the said
amount he ought to have been objected at
that time. However, when such mistake
has been deducted in the year 2009 a
notice has been issued. It is submitted that
the excess amount, which has been paid to
the respondent, was a public money, the
respondent had no legal right to retain the
said amount. Whether there was no
concealment of fact or misrepresentation
on the part of respondent, is wholly
irrelevant. The reliance is placed on the
decision of the Apex Court in the case of
'Chandi Prasad Uniyal and others Vs.
State of Uttarakhand and others' reported
in 2012 (4) ESC 509 (SC).

5.

Learned
counsel
for
the
respondent submitted that there was no
concealment of fact or misrepresentation
on the part of the respondent. The excess
payment was made by the employer,
maybe inadvertently, but the same cannot
be recovered after 6 years from the date of
retirement. He further submitted that in
fact, the excess amount which has been
credited is Rs.52,083/-.

6. We have considered the rival
submissions and perused the records. So
far as the contention of the respondent
that only a sum of Rs.52,083/- has been
paid in excess is concerned, we do not
find any substance, for the reasons that
such plea has not been raised before the
Tribunal. Even such plea has not been
taken in the reply dated 15.09.2009 which
is Annexure-3 to the writ petition. In the
letter dated 17.08.2009 it is specifically
2 All]. Ram Nagina Singh Vs. State of U.P. & Ors.
909
mentioned that the excess amount of
Rs.1,12,525/- has been made in the name
of Mohd. Idrish in the financial year
1996-97, therefore, the plea of the
respondent that only a sum of Rs.52,083/-
has been paid cannot be accepted at this
stage. So far as the payment in excess is
concerned, we are of the opinion that it is
not in dispute. The amount which has
been paid in excess was not legally due to
the respondent, it was a public money and
cannot be retained illegally. The Apex
Court in the case of 'Chandi Prasad
Uniyal
and
others
Vs.
State
of
Uttarakhand and others' reported in 2012
(4) ESC 509 (SC) (Supra) on a
consideration of several decisions of the
Apex Court has held as follows:-

"We are concerned with the excess
payment of public money which is often
described as "tax payers money" which
belongs neither to the officers who have
effected over-payment nor that of the
recipients. We fail to see why the concept
of fraud or misrepresentation is being
brought in such situations. Question to be
asked is whether excess money has been
paid or not may be due to a bona fide
mistake.
Possibly,
effecting
excess
payment of public money by Government
Officers, may be due to various reasons
like negligence, carelessness, collusion,
favouritism etc. because money in such
situation does not belong to the payer or
the payee. Situations may also arise
where both the payer and the payee are at
fault, then the mistake is mutual.
Payments are being effected in many
situations without any authority of law.
Any
amount
paid/received
without
authority of law can always be recovered
barring
few
exceptions
of
extreme
hardships but not as a matter of right, in
such situations law implies an obligation
on the payee to repay the money,
otherwise it would amount to unjust
enrichment."

7. We are of the opinion that the
issue involved is squarely covered by the
decision of the Apex Court referred herein
above. In view of the aforesaid, the
impugned order dated 11.08.2010 passed
in Original Application No.1392 of 2009
'Mohd. Idrish Vs. Union of India and
others' is set aside. The respondent is
directed
to
make
the
payment
of
Rs.1,12,525/- within a period of three
months which may be accepted by the
petitioners in three installments. It is
made clear that apart from the aforesaid
amount the respondent may not be liable
to pay any other amount.

8. Both the writ petitions stand
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2014

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 66995 of 2008

Ram Nagina Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri H.P. Mishra

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Pension
and gratuity-with-held on ground of
pendency of criminal case-admittedly no
departmental enquiry pending-held-no
ground
for
withholding
pension-any
amount excess liable to be adjusted-with